The impact of criminalization of HIV non‐disclosure on the healthcare engagement of women living with HIV in Canada: a comprehensive review of the evidence

Abstract

IntroductionIn 2012, the Supreme Court of Canada ruled that people living with HIV (PLWH) must disclose their HIV status to sexual partners prior to sexual activity that poses a “realistic possibility” of HIV transmission for consent to sex to be valid. The Supreme Court deemed that the duty to disclose could be averted if a person living with HIV both uses a condom and has a low plasma HIV-1 RNA viral load during vaginal sex. This is one of the strictest legal standards criminalizing HIV non-disclosure worldwide and has resulted in a high rate of prosecutions of PLWH in Canada. Public health advocates argue that the overly broad use of the criminal law against PLWH undermines efforts to engage individuals in healthcare and complicates gendered barriers to linkage and retention in care experienced by women living with HIV (WLWH).MethodsWe conducted a comprehensive review of peer-reviewed and non-peer-reviewed evidence published between 1998 and 2015 evaluating the impact of the criminalization of HIV non-disclosure on healthcare engagement of WLWH in Canada across key stages of the cascade of HIV care, specifically: HIV testing and diagnosis, linkage and retention in care, and adherence to antiretroviral therapy. Where available, evidence pertaining specifically to women was examined. Where these data were lacking, evidence relating to all PLWH in Canada or other international jurisdictions were included.Results and discussionEvidence suggests that criminalization of HIV non-disclosure may create barriers to engagement and retention within the cascade of HIV care for PLWH in Canada, discouraging access to HIV testing for some people due to fears of legal implications following a positive diagnosis, and compromising linkage and retention in healthcare through concerns of exposure of confidential medical information. There is a lack of published empirical evidence focused specifically on women, which is a concern given the growing population of WLWH in Canada, among whom marginalized and vulnerable women are overrepresented.ConclusionsThe threat of HIV non-disclosure prosecution combined with a heightened perception of surveillance may alter the environment within which women engage with healthcare services. Fully exploring the extent to which HIV criminalization represents a barrier to the healthcare engagement of WLWH is a public health priority.

Barriers to Viral Suppression Among Female Sex Workers: Role of Structural and Intimate Partner Dynamics

“…9–11 For example, structural and interpersonal factors found to undermine ART adherence among people living with HIV include: intimate partner violence, 9,12 HIV stigma, 10,11,13 social support, trust and satisfaction with employer. 13 Lack of stable, secure housing and has also been linked to reduced adherence and detectable viral loads.…”

Awareness and understanding of HIV non-disclosure case law among people living with HIV who use illicit drugs in a Canadian setting

“…Questions were selected following a comprehensive literature review (Patterson et al, 2015b) and community consultation. The content and wording of the survey questions were community-driven, and proposed questions were piloted with ACCESS frontline research staff prior to use, to identify and remedy problems with question comprehensibility and flow.…”

“…To identify factors associated with the awareness of the ruling, we incorporated explanatory variables identified following a literature review (Patterson et al, 2015b), including: age (per year increase); sex (male vs. female); self-reported Indigenous ancestry (Indigenous vs. non-Indigenous); injection drug use (yes vs. no); homelessness, defined as living on the streets or with no fixed address (yes vs. no); high school completion or greater (yes vs. no); sex work, defined as exchange of sex for money, drugs, clothing, or other property (yes vs. no); violence, defined as experience of violence other than sexual violence or bad dates (yes vs. no); sexual orientation, defined as self-identifying as heterosexual/straight vs. gay/lesbian/two-spirited/bisexual (yes vs. no); experience being jacked up, defined as stopped, searched or detained by police without arrest (yes vs. no); incarceration, defined as being in detention, prison or jail (yes vs. no); being in a stable relationship, defined as being legally married/common law or having a regular partner (yes vs. no); recent sexual activity, presented as a three-level variable, defined as no sex, including no vaginal/anal sex vs. vaginal/anal sex with 100% condom use vs. vaginal/anal sex with <100% condom use; number of years since HIV diagnosis; and receipt of ART (yes vs. no).…”

“…The criminalization of HIV non-disclosure has been shown to represent a structural barrier to the healthcare engagement of PLWH (Mykhalovskiy, 2015; O’byrne, Bryan, & Roy, 2013a; Patterson et al, 2015b). The tension between public health and criminal justice system approaches to HIV prevention is arguably most acutely felt by marginalized and otherwise criminalized groups, including PLWH who use illicit drugs.…”

“…However, awareness and understanding of the legal obligation to disclose HIV serostatus to sexual partners remain largely unexplored among the most marginalized Canadian PLWH (Patterson et al, 2015b). Furthermore, few studies have directly explored opinions of PLWH regarding the preferred role of health and social care providers in providing information and support around HIV disclosure and the law.…”